Excerpt: - - it is now too well established that an executing court cannot be behind a decree however wrong it might be......j. in c. m. s. a. no. 117 of 1948. it arises out of an application in the execution of a mortgage decree passed in o. s. no. 11 of 1942 by the subordinate judge of tenali on 20-7-1942. the decree was against two defendants, namely, subba rao and lakshmipathi. as the madras agriculturists' relief act had come into operation by the date of the institution of the suit, the mortgagee alleged that of the two defendants the first defendant was not an agriculturist; he admitted that the 2nd defendant was an agriculturist and therefore entitled to the benefits of the act. he, therefore, prayed for a decree so far as the first defendant was concerned for the full amount of rs. 3439-3-4 due under the mortgage and against the 2nd defendant for a sum of rs. 2854 only being the amount after scaling.....

Judgment:

1. This is an appeal against the judgment of Panchapakesa Aiyar J. in C. M. S. A. No. 117 of 1948. It arises out of an application in the execution of a mortgage decree passed in O. S. No. 11 of 1942 by the subordinate Judge of Tenali on 20-7-1942. The decree was against two defendants, namely, Subba Rao and Lakshmipathi. As the Madras Agriculturists' Relief Act had come into operation by the date of the institution of the suit, the mortgagee alleged that of the two defendants the first defendant was not an agriculturist; he admitted that the 2nd defendant was an agriculturist and therefore entitled to the benefits of the Act. He, therefore, prayed for a decree so far as the first defendant was concerned for the full amount of Rs. 3439-3-4 due under the mortgage and against the 2nd defendant for a sum of Rs. 2854 only being the amount after scaling down.

For some reason or other, it was not even attempted to be argued that Section 14 of the Act applied to the ease. It was conceded on behalf of the defendants that the amounts claimed against each of tne defendants was correct. The learned Subordinate Judge, therefore, passed a preliminary mortgage decree for sale against the first defendant for a sum of Rs. 3439-3-4 and against the second defendant for Rs. 2634. No appeal was filed against this decree. Subsequent to the decree, it is now common ground that the second defendant has paid the entire amount of the decree as against him, and he applied in the lower appellate court to record full satisfaction. He is obviously entitled to it, and there is no dispute so far as he is concerned.

This appeal is really concerned with the case of the first defendant who according to the decree, was liable for the entire unsealed amount of Rs. 3439-3-4 and subsequent interest and costs. The first judgment debtor, i.e., the first defendant, made an application also for recording full satisfaction, evidently basing himself on the provisions of Section 14 of the Act. Both the courts below rejected his application holding that the first judgment-debtor could not get full satisfaction recorded till he had paid the difference between the unsealed amount and the scaled amount which had been paid by the second defendant.

There was a civil miscellaneous second appeal to this court which was heard and disposed of by Panehapakesa Aiyar J. He allowed the appeal and directed that full satisfaction may be recorded even as regards the first defendant if he paid half the amount due on the scaled basis minus all amounts paid either by him or by the second defendant. His judgment proceeded mainly on the assumption that the learned Subordinate Judge who passed the preliminary mortgage decree made an unfortunate error and that error could be remedied and set right at the stages at which the matter stood when the application for recording satisfaction was made. According to the learned Judge, the Subordinate Judge forgot to reduce the unsealed and scaled amounts payable by the two defendants respectively by one half when apportioning the decree debt between the two.

With great respect to the learned Judge, we must point out that there was no question of apportionment at all. A perusal of para. 9 of the judgment of the learned Subordinate Judge who passed the mortgage decree will conclusively demonstrate that the decree as passed by him was not due to any inadvertent omission or lapse of memory. Section 14 was not even relied on by the defendant. Learned counsel on behalf of the defendants admitted that the amount due from each of the defendants would be the the amount as prayed forby the plaintiff and the learned Judge deliberately passed the decree as it stands now.

2. In our opinion, the entire, judgment of Panehapakesa Aiyar J. is vitiated by this wrong assumption that there was originally an inadvertent error in the decree as passed by the Subordinate Judge and that it was permissible to correct the error in the execution court. The decree, however wrong it might be, became final. There was no appeal against it and no attempt to review it. It is now too well established that an executing court cannot be behind a decree however wrong it might be. This is not a case in which the decree had been passed before the coming into operation of the Agriculturists' Relief Act, so that the debtor could be permitted to rip open the decree by proceedings under the Act. If any provision of the Act were applicable on the date on which the suit was instituted, then it was the duty of the defendants to have raised pleas based on such a provision. Not having done so and having suffered a decree to be passed, it is not open to them to put forward pleas which they could have but did not put forward at the trial.

3. It follows, therefore, that the decree must stand as it was passed, and under that, the first defendant is liable to pay the entire unsealed amount of Rs. 3439-3-4. Of course, the amount paid by the 2nd defendant towards the decree would be deducted from this amount, and for the balance, the first defendant would be undoubtedly liable.

4. This court at one time took the view that where a decree had been passed against two judgment debtors, one of whom was an agriculturist and another a non-agriculturist, if the agriculturist paid the amount of the decree as scaled down, the non-agriculturist judgment-debtor was also entitled to have full satisfaction of the decree entered up in his favour. But that view was overruled by the Supreme Court in -- 'Ramaswami Aiyangar v. Kailash Thevar', : [1951]2SCR292 (A). Vide also the decision of the Pull Bench in -- 'Venkata-vadhamulu v. Ramayya Garu', : AIR1954Mad383 (B).

5. In the result, this appeal is allowed with costs and C. M. S. A. No. 117 of 1948 is dismissed with costs.